Monday, February 9, 2009

Opening statements made in slay case of dentist and Accused Gunman Confronted Dentist day Before Murder

Accused gunman confronted dentist day before murder: NYPDThe man accused of gunning down a Forest Hills dentist in front of his daughter attempted to assault the Uzbek immigrant a day before he was shot, according to a police report revealed Wednesday.Hours before jury selection began for the murder and conspiracy trial of Mazoltuv Borukhova and her distant uncle, Mikhail Mallayev, the prosecution and defense argued over the validity of a NYPD report in a witness claimed he saw Mallayev, 51, and another unidentified man physically confront Borukhova’s estranged husband, Dr. Daniel Malakov. The incident took place at Malakov’s Forest Hills dental office on Oct. 27, 2007. Prosecutors contend Borukhova, 35, hired her relative to kill Malakov the next morning as payback for gaining custody of their then 4-year-old daughter Michelle.Mallayev’s attorney, Michael Siff, said the report was questionable because the witness only identified Mallayev by name after his arrest in November 2007.“He first describes a individual with a height, weight etc...and then three weeks later says it was my client,” Siff said.Assistant District Attorney Brad Leventhal said the unidentified witness was reliable when he described the event during the initial police investigation into the encounter and later talked to authorities.

“He identified Mallayev as one of the men in that scuffle,” he said.

The report describes two Russian men confronting Malakov, 34, who was from Uzbekistan like his estranged wife, and at one point one of the men attempting to force his way into the office. The witness claimed that one of the men appeared to be a “lookout” and to have his hand in his trench coat pocket in a way that indicated he had a gun, according to the report.

Borukhova’s attorney, Stephen Scarring, was granted permission by State Supreme Court Justice Robert Hanophy to see the report Tuesday after the defense attorney had learned that the DA’s office was not going to admit the report into evidence. Although he did not know that Mallayev was identified in the report before he made the request, Scarring said he would consider admitting the report during the trial.

If convicted, Mallayev and Borukhova face up to life in prison without parole.

On Oct. 28, 2007, Malakov was shot twice in the chest as he was dropping off his daughter in the Annadale Playground in Forest Hills to meet Borukhova. The girl was placed in Malakov’s custody 10 days before his murder.

Mallayev was charged with murder after investigators found his fingerprints on a makeshift silencer left at the playground by the shooter, prosecutors said.

When arrested, Mallayev, who lived in suburban Atlanta, initially denied being in Queens at the time of the shooting, but changed his story when detectives said they had records indicating he made cell phone calls near the crime scene.

Borukhova was arrested last February and charged along with her uncle with first-degree murder and conspiracy after investigators found that there had been more than 90 phone calls between her and her uncle in the weeks leading up to the murder but only two following it.

A few weeks before the shooting Borukhova’s sisters visited state Sen. Diane Savino (D-Staten Island) and asked her suspicious questions related to the custody dispute.

“What if something happens? What if he can’t take care of her?” the senator recalled the sisters asking her. “What if she disappears?”

The long-awaited murder trial of two defendants accused of conspiring to kill a Forest Hills dentist began on Wednesday with opening statements from the defense and prosecutor. Dr. Mazoltuv Borukhova, 35, and Mikhail Mallayev, 51, are accused of taking part in a “murder-for-hire” scheme that resulted in the killing of Borukhova’s estranged husband, orthodontist Daniel Malakov, 34. Allegedly, Borukhova, an internist, hired Mallayev, a relative, to shoot her husband at Annadale Playground on Yellowstone Boulevard and 64th Avenue on Oct. 28, 2007.

The motive for the crime was described by prosecuting attorney Brad Leventhal as “a heated, contentious, and acrimonious divorce, fueled entirely by issues of custody” over the couple’s young daughter, Michelle, then 4.

The prosecution argued the evidence would show that Borukhova tried “to accomplish in one moment what she could not accomplish in years of litigation … by payment to an assassin.” Leventhal described a troubled marriage that fell apart completely after the birth of Michelle and the ensuing battle over custody and visitation that followed.

He insisted that Borukhova did everything in her power to keep her husband from even “the opportunity to spend a weekend alone with his little girl.”On Oct. 3, 2007, a judge ordered Borukhova to transfer custody of their daughter to her husband. Six days after the girl was given to Malakov, he was gunned down in broad daylight just a few feet away from his daughter.

Allegedly, Borukhova “lured” him to the spot at a designated time, knowing that her hitman, Mallayev, “lay in waiting.”

The jury heard the prosecutor describe how Mallayev shot Malakov three times, with two bullets puncturing his chest and causing massive internal hemorrhaging and eventually his death. The gun he allegedly used had a homemade silencer on it, constructed out of an empty bleach bottle and duct tape.

Leventhal said the force of the bullet knocked the silencer off the gun and it was recovered at the scene by the NYPD.

Mallayev then allegedly drove 20 hours south, to his home in Georgia. There he waited for almost two weeks before returning to Queens to meet with Borukhova and then deposit “his payment” in the bank.

The prosecutor said there was an eyewitness, schoolteacher Sheryl Springstein, who saw the murder and the murderer’s face clearly and whose description allegedly matched Mallayev “to a tee.”

Leventhal said the witness also subsequently picked him out of a lineup of five other men.

The prosecution claims it has evidence that undeniably links Mallayev both to the murder and to Borukhova. The ties between Mallayev and Borukhova were summarized by the fact that they communicated by cell phone 68 times in the six days preceeding the murder.

They spoke a total of 91 times in the three weeks leading up to the murder, but only twice after the crime took place. After police searched Borukhova’s office, they also allegedly found Mallayev’s name on an appointment calendar scheduled just days before he deposited his “fee” into the bank.

Other evidence that is expected to be entered into record include forensic evidence and testimony demonstrating that the silencer had “traces of gunshot residue” and three fingerprints that allegedly match Mallayev’s; bank records showing that Mallayev deposited almost $20,000 in smaller amounts into various bank accounts; cell phone records; other witnesses recalling the defendants’ statements; and inconsistencies in statements made by both defendants to the police.

The defense attorney used his opening statements to remind the jury that the prosecutor’s version of the events “meant nothing,” because no evidence had yet been presented. Stephen Scaring suggested the investigators were eager “to jump on” this case and did not conduct it impartially.

“Their intention was to confuse and manipulate my client,” Scaring said, referring to Mallayev. “In this digital age, why were his statements not recorded? There is no video, no audio.”